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Joint petition dismissed by judge, but issue not over

By Staff | Apr 3, 2019

After a judge’s recent dismissal of their joint petition challenging an update to the Caloosahatchee Minimum Flow and Levels Rule, Sanibel and five other Southwest Florida municipalities have asked for a two-year pilot study and evaluation of the additional data before the proposed rule is adopted.

Administrative Law Judge Francine Ffolkes, with the Florida Division of Administrative Hearings, issued her final order on March 8 in the case filed in September by the city, along with Cape Coral, Fort Myers Beach, Fort Myers, Estero and Bonita Springs, plus the Captiva Community Panel. A motion by the Captiva Erosion Prevention District to also join was denied; Lee County declined to participate.

In their challenge, the petitioners and intervernors questioned the validity of the South Florida Water Management District’s amendments to the rule on the minimum flows and levels, or MFLs. The board had voted to raise the Caloosahatchee MFL criteria from a 30-day flow of 300 cubic feet per second to 400 cfs at the Franklin Lock, despite requests from Sanibel and others for a higher baseline number.

They argued that current data indicates that 400 cfs is inadequate to maintain the salinity below the ecological harm threshold of the established 10 practical salinity units, among other things, and asked that the judge rule that the proposed rule was “an invalid exercise of delegated legislative authority.”

Sanibel Natural Resources Director James Evans explained that while Ffolkes found the involved parties were substantially affected and had standing to challenge the amendments, she also found that the SFWMD’s proposed rule was a valid exercise of its authority based on the testimony presented.

“Because of that, the petition was dismissed,” he said, adding that the judge ruled in favor of the district. “They did not exceed their legislative authority. (The rule) was not arbitrary and capricious.”

In response to the ruling, the district’s attorneys sought court costs and fees from the challengers.

Evans explained that Ffolkes denied the motion.

“She denied that we had to pay the district’s attorney fees because the petitioners and intervernors did not participate for an improper purpose or an invalid reason,” he said. “We had just cause to challenge.”

“They just didn’t rule in our favor,” Evans added.

As for the judge’s final order itself, it was not what the parties had hoped for.

“We’re very disappointed that we didn’t win the challenge, primarily because we feel that the proposed rule is less protective than the 2001 rule,” he said. “It shifts from a salinity target to a flow target.”

“We feel there’s a lot of scientific evidence that suggests the flows should be higher,” Evans added. “We also think it’s going to result in higher dry season salinities.”

He pointed to data collected from January to April in 2018, when the Caloosahatchee was receiving average flows of 650 cfs, that indicated salinity remained above the 10 psu threshold for 89 days.

“We argued that the rule was not appropriate because there was science that determined that the rule should be higher,” Evans said of the 400 cfs and petition. “It should have been increased before it even moved forward for adoption. There’s glaringly obvious issues that need to be addressed with the rule.”

Since the judge’s filing of the final order, Sanibel had provided its new SFWMD Governing Board representative – former City Councilmember Chauncey Goss – and the rest of the new board with the data to support the MFL increase request. The six municipalities also contacted Gov. Ron DeSantis.

“We sent a letter to the governor on March 14,” he said.

In the letter signed by all the mayors, they reiterate their concern that the proposed rule changes the focus from a salinity target to a simple flow measurement, shifts the ecological baseline away from a sensitive ecological indicator habitat of tape grass and averages it over less sensitive indicators, and would result in higher dry season salinities and impact organisms that depend on the low-salinity zone in the upper estuary.

Also in the letter, they highlighted the district’s water management policies from 1999 to 2001, which resulted in the loss of hundreds of acres of tape grass habitat in the upper Caloosahatchee estuary.

“We’re asking for a two-year pilot study that would incorporate new data and new monitoring stations,” Evans said, adding that the study would evaluate the relationship between measured flow and salinity.

He explained that the Florida Department of Environmental Protection recently approved the installation of six additional stations – three in the tidal Caloosahatchee downstream of the Franklin Lock and Dam, and three upstream of it. The stations are expected to be online later this year.

Because the district’s standings on the proposed rule rely on the C-43 West Basin Reservoir, which is not set to be finished until 2022, there would be time to review data from the additional stations.

“I think there’s a lot more information to be considered in light of what’s happened this last year,” Evans said. “We’re asking for a pause and evaluation of the new data over the next two years.”

“So that we don’t adopt a rule that would be harmful to the estuary,” he added.

Evans noted that maintaining an accurate minimum flow in the dry season provides suitable salinity levels to protect the estuary and makes the estuary more resilient when it does receive high flows.

“If we don’t try to rein those in on both ends, the system’s going to degrade,” he said.

In response, the SFWMD and its board have indicated they are willing to discuss the issue further.

“We are going to work with the water management district and the new governing board to re-evaluate all of the existing data to see if they will reconsider before this rule becomes law,” Evans said.